Mills, In re

• Citation: 539 S.W.2d 447
• Decision Date: 12 July 1976
• Docket Number: No. 58878,58878
• Parties: In re John E. MILLS, Respondent.
• Court: United States State Supreme Court of Missouri

Page 447

539 S.W.2d 447

In re John E. MILLS, Respondent.

No. 58878.

Supreme Court of Missouri, En Banc.

July 12, 1976.

Rehearing Denied Sept. 13, 1976.

Walter M. Clark and Edwin L. Noel, St. Louis, for informants.

Welliver, Atkinson & Eng, Columbia, for respondent.

HENLEY, Judge.

This is a disciplinary proceeding commenced in this court pursuant to Rule 5 ¹ by The Advisory Committee (informants) ² against John E. Mills (respondent) a member of the bar of this state residing at New London, in Ralls county. The information charges respondent with violation of Rule 4, Code of Professional Responsibility, canons 1, 5 and 7, and in particular DR1--102(A) (4) and (5); DR5--101(A); DR5--104(A); DR7-- 102(A)(3) and (8). ³ After the pleadings were made up, a Master was appointed by the court to hold a hearing pertaining to the charges. He has done so and has made and filed his report, findings and conclusions. The Master's recommendation is that respondent be disciplined. Informants and respondent, through their respective counsel, have filed briefs and presented oral argument.

The acts of respondent charged in the information and found by the Master to be in violation of the Code occurred in early 1974, while respondent was engaged in the private practice of law. Since those dates, respondent, on January 1, 1975, became Probate Judge and ex officio Magistrate of Ralls county, having been elected to that office in November, 1974.

We have reviewed and considered the whole record. There is no real dispute as to the facts and no need to lengthen this opinion with more than a brief summary of the evidence heard, reviewed and considered. It is sufficient to say that the evidence supports our decision that respondent must be disciplined.

We find from the evidence and conclude that in January, 1974, respondent was, and had been for several years, guardian of the estate of Kenneth Grayson, a Marine Corps veteran who had been determined to be an incompetent by the Probate Court of Ralls county; that respondent acquired in a trade in October, 1973 (but did not record the deed conveying the property to him), and desired to sell, a lot in New London with a mobile home located thereon which had been used as a residence; that his ward desired to purchase this lot and the mobile home for his residence; that on January 30, 1974, respondent, as guardian, filed a petition in the Probate Court of Ralls county seeking an order authorizing him to buy this real estate for his ward and did not reveal therein, but intentionally concealed, the fact that he was the owner and seller thereof; that the probate court, ⁴ without hearing evidence thereon, sustained the petition and entered an order on the same day authorizing respondent, as guardian, to purchase this property for his ward for $8,000 (the price asked) on terms of $2,000 cash with the balance, payable in monthly installments, evidenced by a promissory note bearing interest at 8% per annum, to be secured by a deed of trust; that on January 31, 1974, respondent prepared and had the persons from whom he (respondent) had acquired the property in October, 1973, execute and acknowledge a general warranty deed conveying the lot and the mobile home direct from them to respondent as guardian for Kenneth Grayson; that respondent filed this deed for record February 4, 1974, but wrote across the top of the deed 'Do not publish,' as a request to the local newspaper that news not be published regarding the deed; that on January 17, 1974, respondent wrote the regional attorney of the Veterans Administration enclosing a copy of the petition later filed in the probate court and a copy of the proposed order approving the purchase, ⁵ but he intentionally concealed the fact that he was the seller; that the attorney replied to this letter by sending respondent a waiver of appearance on behalf of the Veterans Administration, but he testified that had he been aware of the fact that respondent was the seller he would not have approved the transaction.

As a matter of fact, respondent does not deny that he sold this property to his ward or that the property was owned by him. Nor does he deny that he did not inform the probate judge in person or by allegation in his petition as guardian that he owned the property and was the seller. Nor does he deny that he did not inform the Veterans Administration of these facts when he sought its waiver of appearance. Respondent knew, of course, that the probate court's authority under § 475.450 to approve and authorize the purchase of real estate as a home for a veteran explicitly excludes real estate in which the guardian has an interest. Moreover, he knew the Canons and Disciplinary Rules of the Code of Professional Responsibility.

The conclusion is inescapable that respondent engaged in self-dealing, even if it be assumed that he did not make a profit on the sale. He improperly used his fiduciary position to make a sale of property he wanted to dispose of and whether he made a profit thereon is of no significance. Nor is it of any significance or excuse for respondent's action that the ward knew that his guardian owned the property he wanted for a residence, or that the ward's mother knew and approved of the purchase. The ward, although an adult, was incompetent, and respondent was in no position to deal with him at arm's-length in a business transaction, because of the fiduciary relationship and because the award was incapable of consenting to the purchase. Thus, respondent violated DR5--104(A). He concealed the fact of his ownership from the probate court and the Veterans Administration, one of which he knew had the obligation to deny him an order authorizing the purchase and the other he knew would not waive its appearance but would require further investigation and delay, if it had this information. In doing so respondent engaged in conduct involving deceit and misrepresentation, conduct prejudicial to the administration of justice. He violated DR1--102(A)(4) and (5).

Respondent contends that exclusive jurisdiction to initiate and prosecute disciplinary proceedings against an incumbent judge in this court is in the Commission on Retirement, Removal and Discipline; ⁶ that the Advisory Committee was without jurisdiction or authority to do so notwithstanding the fact that the alleged acts were violations of the Code of Professional Responsibility committed while he was a practicing lawyer; that for these reasons this court is without jurisdiction to proceed in this case. Respondent argues that for the Advisory Committee to initiate and prosecute such proceedings against an incumbent judge in a case which could lead to disbarment or other discipline for which the judge's license to practice law would be cancelled, and one of his qualifications for the office thereby removed, would result in this Committee having the power indirectly to eefect the removal of a judge from office. The Missouri cases ⁷ he cites are not applicable or controlling in this case and the Florida and Oklahoma cases ⁸ and not persuasive and, of course, not controlling.

We were presented with a matter somewhat analogous to this in In Matter of Hasler, 447 S.W.2d 65 (Mo.banc 1969). In Hasler we held that misconduct of a lawyer while serving as a judge was ground for and supported his disbarment as a lawyer after his resignation from the judgeship. Here, we are presented with an action to discipline a person, now serving as a judge, for misconduct committed while he was a lawyer and before he became a judge. Does his position on the bench render him immune to discipline for violation of the Code of Professional Responsibility applicable to all persons licensed to practice law in this state? Respondent argues that since he may not practice law while a judge, he may not be disciplined while a judge for misconduct committed while a lawyer. Although he may not practice law while a judge, he still holds a license to practice law (a qualification he must have to hold the office of judge), he is still a lawyer, and if he has violated the Code of Professional Responsibility he is, as an officer of this court, amenable to discipline even though it result directly in...